What are Alternative Dispute Resolution (ADR) methods?
ADR stands for Alternative Dispute Resolution. Parties can reach family law agreements with the help of a mediator, arbitrator, or collaborative lawyer as alternatives to litigation in court. Note that your agreement is strongest when both parties have obtained independent legal advice from a family lawyer before signing anything.
All family dispute resolution professionals, including lawyers, are obligated to encourage parties to resolve their dispute through agreements and other resolution methods where appropriate, without the use of court intervention (Family Law Act [SBC 2011] c 25: Part 2, section 4).
Benefits of ADR
- It can be faster: Unlike the court process where one party can bring unlimited applications and lawyer negotiations stretch onward as conflict increases toward trial, resolving your dispute through an ADR process designed to reach settlement is less adversarial and can keep costs more reasonable as the parties work together toward an agreement with an expedited plan and an intention to settle.
- It can be less expensive: Although some ADR processes involve hiring multiple professionals to secure proper financial disclosure and tax advice, as well as child experts and counsellors, parties going through litigation often must hire these same professionals as well, with the additional cost of having them testify in court or provide formal expert reports summarizing their findings/conclusions.
- It can be less invasive: Litigation involves the potential of parties being grilled on the stand in court to testify regarding their entire lives and credibility. The parties also write lengthy sworn statements (affidavits) for court explaining their positions and the facts of their family life in a very pointed manner which can paint a picture that offends the other spouse and further entrenches the parties in opposite positions. Moreover, children and their views may become the subject of investigation such that the court must order formal (and sometimes quite expensive) interviews to take place to question the children regarding their perspectives on their parents and family life. The benefit of ADR is that the parties and their family members are in a closed process aimed at collaboration and teamwork. Often there is no need to go into great detail about the history of one’s family life since you are not proving anything to a judge.
- It can reduce conflict and stress: Parties usually enter ADR processes with the future in mind more than the past, as the goal is to create a settlement they are both satisfied with. Rather than highlighting points of contention and conflict, ADR professionals are looking for common ground and agreement. This approach can reduce the stress of preparing for surprise court dates and replying to accusations that only serve to escalate conflict.
- It can help with co-parenting: Parties with children who have used ADR are better equipped to overcome the awkwardness and hurt of their own breakup to focus on what is best for the children. They are practicing the collaboration skills necessary to process intense emotions with maturity and work together as parents, rather than spouses.
- It can increase privacy: Spouses who do not wish for their names and personal lives to be registered in the public court system have the chance to settle things out of court. Although there is also the option of anonymizing your court case by using initials rather than names in litigation for privacy. Parties who own businesses may want to use ADR to streamline the settlement of the financial aspect of the relationship without working through their complex business interests and structures in court, but rather with the relevant professionals who can provide available income and business valuation reports to be discussed with an impartial financial advisor.
- It still provides accountability: Parties who came to a settlement through ADR still come out of the process with a valid and legally binding agreement (see section 6 of the Family Law Act). Your settlement agreement can be filed with the court as well, so that it can be enforced against a party who is not abiding by the agreement (see Rule 2-1). The ADR process also requires full financial disclosure, since you can only protect what you have disclosed. Omissions can undermine the fairness and validity of a settlement such that the other party can apply to have the court overturn or set aside the agreement, or part of an agreement.
- It can provide more control: Parties who put effort into complying with an ADR process in good faith are able control the outcome of their family law matter more than those who turn their fate over to a judge. However, consent-based ADR processes do rely on the rationality of both parties and the assumption that both sides are willing to work together and compromise.
Where ADR May NOT be Appropriate
Where one spouse is uncompromising, unfair, or abusive, the ADR process is often not appropriate. ADR could be weaponized against a weaker party if there is a power-imbalance in a relationship that goes undetected.
Family dispute resolution professionals, however, are under legal and ethical obligations to carefully screen clients for signs of family violence and any pattern of abusive coercion or control. The court is a very useful tool to obtain protection orders (restraining orders) and conduct orders to create the enforceable boundaries needed to ensure the safety of all parties.
ADR may also not be appropriate when you are experiencing an urgent family matter, such as when one spouse is trying to move away with the children (relocation), and you believe that spouse is acting unreasonably and is not open to negotiation.
Types of ADR
ADR can be used during a litigation file, such as scheduled mediation or arbitration while you have lawyers. Those who may have already started a court process can still try to settle their matter at any time. Your lawyer can draft up the agreement as a consent order to end the court process by filing the settlement with the court and discontinuing the court action.
Another ADR process gaining popularity is collaborative law or collaborative divorce where parties are still represented by lawyers however they agree at the outset not to go to court and so they all sign a participation agreement to that effect. Therefore, the negotiations happen in closed meetings with lawyers and other hired professionals to reach a fair and informed settlement without court.
ADR can also be used independently with a mediator only and the parties may attend without legal advice, however there are more risks to that option since neither party has been legally advised.
A meeting with a family lawyer for independent legal advice is always strongly recommended before signing any family law agreement, settlement, or order. Your agreement is strongest when both parties have obtained independent legal advice on it before signing.
Discuss your Options
Schedule a call or meeting with one of our family lawyers today to assess your family situation and discuss which ADR options might be applicable and effective for your case.
